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The Big, Bad NLRB

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in HR Soapbox

For most nonunion employers, the National Labor Relations Board (NLRB) has always been one of those federal agencies that occasionally makes headlines but generally could be ignored.

Not anymore.

The past six months have seen a flurry of activity at the NLRB … none of it good for business. And while employment-related legislation is stalled in Congress, the NLRB’s rise is just another example of the increased regulatory and enforcement efforts coming from agencies like the DOL, EEOC and IRS.

(Editor's Note: At our upcoming Labor & Employment Law Advanced Practices (LEAP) Symposium (March 21-23 at the ARIA in Las Vegas), we’ll summarize the most important recent developments and explain how they’ll affect your organization and your career. See our newly updated agenda for sessions like “The New NLRB”, “Eye on Employment Law” and more.)

Three recent NLRB actions to be aware of:

1. Controversial new recess appointments

On Jan. 4, President Obama announced a controversial recess appointment to put three new members—two Democrats and one Republican—on the five-member NLRB board. This will restore the board’s quorum and decision-making authority that it lost when it dropped to only two members at the end of 2011.

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The NLRB requires at least three members to act on anything. Republicans and business groups were more than happy to keep the board stuck in neutral for all of 2012. But the president decided to seat Sharon Block (D), a Labor Department deputy; Richard Griffin (D), the general counsel of the International Union of Operating Engineers; and Terence Flynn (R), a counsel to the other current Republican on the board.

Republicans in Congress had attempted to block such a recess appointment by refusing to officially recess over the holiday break and holding “pro forma” sessions during that time. But President Obama argued that he has the authority to make recess appointments when the Senate is “effectively” in recess.

Union groups praised the appointments. The U.S. Chamber of Commerce said the president’s actions will, “further poison the well with regard to labor-management issues.” This unusual appointment appears headed for the courts.

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2. Deadline for pro-union poster pushed to April 30  

Last fall, the NLRB announced that private employers—both union and nonunion—will soon have to display a new 11-by-17-inch poster in their workplaces that notifies employees of their rights to join and form a union.

Nov. 14 was the NLRB’s initial deadline for employers to display the controversial poster. But a coalition of business groups sued, saying the NLRB overstepped its authority by mandating a blatantly pro-union notice. As a result, the agency delayed the effective date to Jan. 31. Now the NLRB has again pushed back the deadline, this time to April 30. A court heard the business group’s arguments in mid-December but has yet to rule.

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3. New NLRB rules will speed up union elections

I've previously written about how the NLRB was moving closer to approve procedural changes that would dramatically shorten the union election process in U.S. workplaces. Well, the NLRB pulled the trigger on Dec. 21 with a 2-1 vote.

These new “quickie” or “ambush” election rules shorten the time between the filing of an election petition and actual voting, making it easier for unions to win elections and more difficult for employers to communicate with employees before the vote. Among other things, these rules require employers to postpone legal challenges until after the workers vote.

It’s estimated that the time between an organizing petition and a full union election—currently averaging about 38 days—could be cut in half if this NLRB proposal is finalized. The rules are scheduled to take effect on April 30. But, again, a business-backed lawsuit is challenging the changes.

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